The stories below are based off real client experiences. However, all names and specific details have been altered as a matter of privacy and confidentiality.
Whether they call it “anchor babies” or “birth tourism,” anti-immigrant groups are yet again attacking the right to U.S. citizenship by birth, which has been protected by the U.S. Constitution for almost 150 years. Earlier this month, conservative U.S. Senator David Vitter proposed an amendment to limit birthright citizenship to children of U.S. citizen or LPR parents.
Sen. Vitter and his followers are ignoring the interests of children who have no choice in where they are born, where they live and in to which family they are born. These children born to undocumented parents are already ignored under the unforgiving U.S. immigration legal system.
In family cases involving children, like adoption and custody, state courts have universally adopted a “best interests of the child” standard in making decisions that affect the child. This is not the case in immigration cases.
One of the most common forms of relief for undocumented parents is cancellation of removal. Under this relief, parents who are facing deportation may obtain permanent lawful status if, among other requirements, they can prove their children will suffer exceptional and extremely unusual hardship if they are deported.
Through its decisions, the immigration courts have interpreted this requirement strictly and ignored the best interests of the child. Unless the child has a learning or physical disability, the parent likely will not win the case. This has dramatic negative effects for hundreds of U.S. citizen children with good parents like John and Kelly
John and Kelly are undocumented parents of two U.S. citizen children, 5 and 10. Both children are healthy and well-behaved. They are active and do well academically. Their parents are very involved in their lives and raise their children under their strong Christian values.
John was recently arrested by immigration officials based on a twelve-year-old DUI and placed in removal proceedings. Under the current immigration system, John likely will not qualify for cancellation of removal. Under current immigration policy, their children are young and healthy and could more easily adjust to life in a new country if the family follows him to his home country, and if the children stay it is merely a parental choice. Unfortunately, these statements ignore the larger issues caused by the divide of a successful and tight-knit family.
In these cases, immigration courts do not look at the case from the perspective of the children to determine their best interests. Several scientific studies have shown that forcibly removing a parent like John from a cohesive family unit causes significant short-term and long-term emotional and physical hardship to the children. Unfortunately, immigration courts have not considered these studies or the children’s best interests. Until courts consider these interests, hundreds of children, who had no choice in where they were born or who their parents are, will face irreversible harm when their families are torn apart.
DISCLAIMER: Nothing in this blog should be construed as legal advice. If you are in removal proceedings or need legal advice on your immigration case, please contact an immigration attorney.